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Ewen Chardronnet on Wed, 11 Jun 2008 13:40:55 +0200 (CEST)

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Department of Justice Fails to Appeal Dismissal
Kurtz Speaks about Four-Year Ordeal

Buffalo, NY—Dr. Steven Kurtz, a Professor of Visual Studies at SUNY at 
Buffalo and cofounder of the award-winning art and theater group 
Critical Art Ensemble, has been cleared of all charges of mail and wire 
fraud. On April 21, Federal Judge Richard J. Arcara dismissed the 
government’s entire indictment against Dr. Kurtz as “insufficient on its 
face.” This means that even if the actions alleged in the indictment 
(which the judge must accept as “fact”) were true, they would not 
constitute a crime. The US Department of Justice had thirty days from 
the date of the ruling to appeal. No action has been taken in this time 
period, thus stopping any appeal of the dismissal. According to Margaret 
McFarland, a spokeswoman for US Attorney Terrance P. Flynn, the DoJ will 
not appeal Arcara’s ruling and will not seek any new charges against Kurtz.

For over a decade, cultural institutions worldwide have hosted Kurtz and 
Critical Art Ensemble’s educational art projects, which use common 
science materials to examine issues surrounding the new biotechnologies. 
In 2004 the Department of Justice alleged that Dr. Kurtz had schemed 
with colleague Dr. Robert Ferrell of the University of Pittsburgh 
Graduate School of Public Health to illegally acquire two harmless 
bacteria cultures for use in one of those projects. The Justice 
Department further alleged that the transfer of the material from 
Ferrell to Kurtz broke a material transfer agreement, thus constituting 
mail fraud.

Under the USA PATRIOT Act, the maximum sentence for these charges was 
increased from five years to twenty years in prison.

Dr. Kurtz has been fighting the charges ever since. In October 2007, Dr. 
Ferrell pleaded to a lesser misdemeanor charge after recurring bouts of 
cancer and three strokes suffered since his indictment prevented him 
from continuing the struggle.


Finally vindicated after four years of struggle, Kurtz, asked for a 
statement, responded stoically: “I don’t have a statement, but I do have 
questions. As an innocent man, where do I go to get back the four years 
the Department of Justice stole from me? As a taxpayer, where do I go to 
get back the millions of dollars the FBI and Justice Department wasted 
persecuting me? And as a citizen, what must I do to have a Justice 
Department free of partisan corruption so profound it has turned on 
those it is sworn to protect?”

Said Kurtz’s attorney, Paul Cambria, “I am glad an innocent man has been 
vindicated. Steve Kurtz stared in the face of the federal government and 
a twenty-year prison term and never flinched, because he believes in his 
work and his actions were those of a completely innocent man. Clients 
like him are a blessing, and although I have had many important 
victories, this one stands at the top of the list.”

As coordinator of the CAE Defense Fund, a group organized to support 
Kurtz from the beginning of the case, Lucia Sommer sees the end of the 
prosecution as bittersweet, and like Kurtz, is thoughtful about the 
broader significance of the case: “This ruling is the best possible 
ending to a horrible ordeal—but we are mindful of numerous cases still 
pending, and the grave injustices perpetrated by the Bush administration 
following 9/11. This case was part of a larger picture, in which law 
enforcement was given expanded powers. In this instance, the Bush 
administration was unsuccessful in its attempt to erode Americans’ 
constitutional rights.”

Referring to the international outcry the case provoked, involving 
fundraisers and protests held on four continents, Sommer said, “The 
government has unlimited resources to bring and prosecute these kinds of 
charges, but the accused often don’t have any resources to defend 
themselves. This victory could never have happened without the activism 
of thousands of people. Supporters protested, vocally opposed the 
prosecution, and refused to let it go on in silence. And without their 
efforts at fundraising, Kurtz and Ferrell would not have been able to 
defend themselves from these false accusations.”

Sommer added that the next step for the defense will be to get back all 
of the materials taken by the FBI during its 2004 raid on the Kurtz 
home, including several completed art projects, as well as Dr. Kurtz’s 
lab equipment, computers, books, manuscripts, notes, research materials, 
and personal belongings. The four confiscated art projects are the 
subject of an exhibition entitled SEIZED on view at Hallwalls 
Contemporary Arts Center in Buffalo, NY, through July 18:


The case originated in May 2004, when Kurtz’s wife Hope died of heart 
failure as the couple was preparing a project about genetically modified 
agriculture for the Massachusetts Museum of Contemporary Art. Police who 
responded to Steve Kurtz’s 911 call deemed the Kurtzes’ art materials 
suspicious and alerted the FBI. Kurtz explained that the materials 
(legally and easily obtained basic life science equipment and two 
harmless bacteria samples) had already been displayed at museums 
throughout Europe and North America with absolutely no risk to the 
public. However, the following day, Kurtz was illegally detained for 22 
hours on suspicion of bioterrorism, as dozens of agents from the FBI, 
Joint Terrorism Task Force, Homeland Security, Department of Defense, 
ATF, and numerous other law enforcement agencies raided his home, 
seizing his personal and professional belongings. After a federal grand 
jury refused to charge Kurtz with bioterrorism, Kurtz and Ferrell were 
indicted on two counts of mail fraud and two counts of wire fraud 
concerning the acquisition of $256 of harmless bacteria for one of 
Critical Art Ensemble’s educational art projects. (Critical Art Ensemble 
is the recipient of numerous awards for its projects, including the 
prestigious 2007 Andy Warhol Foundation Wynn Kramarsky Freedom of 
Artistic Expression Grant, in recognition of twenty years of 
distinguished work: http://www.creative-capital.org/index2.html.)

The Department of Justice brought the charges in spite of the fact that 
the alleged “victims of fraud”—American Type Culture Collection and the 
University of Pittsburgh—never filed any charges or complained of any 
wrongdoing, and the fact that in bringing the charges the Department of 
Justice was acting completely outside its own Prosecution Policy 
Relating to Mail Fraud and Wire Fraud 

For more information and extensive documentation, including the Judge’s 
dismissal, please visit:


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